August 12, 2014

Keeping Your Construction Business in Shape with Five Simple Checkups


By Katie Jeremiah

Winter 2012

Just as doctors monitor your health by checking temperature, pulse, and blood pressure, your business should schedule its own regular health check-ups. These minimally invasive diagnostics can help your business reduce risk, improve collections, and avoid costly consequences of missing critical deadlines.

1. Involve DMV.

If driving is a part of your employees job monitor employee driving records. Sign up for the Department of Motor Vehicles ("DMV") automated reporting service. According to the Occupational Safety and Health Administration ("OSHA"), motor vehicle crashes cost employers $60 billion each year in medical care, legal expenses, property damage, and lost productivity. OSHA reports that, according to a study performed nearly a decade ago, the average crash costs an employer $16,500. That increases to $75,000 if the crash results in an injury and to more than $500,000 if it involves a fatality. The magnitude of this economic burden on employers, arising from preventable crashes, warrants implementing a driver safety program that includes monitoring employee driving history.

Employers should sign up for an Oregon DMV Record Inquiry Account and subscribe to itsAutomated Reporting Service. This service produces and sends a court print driving record when a conviction, accident, or suspension is posted to an employee's record. Employers should also implement and enforce policies that define when an employee's driving history will result in removing on-the-job driving privileges.

2. In Good Standing.

Verify that your business is in good standing with the Oregon Secretary of State and mark your calendar with annual report filing deadlines. Oregon businesses are required to file annual reports with the Oregon Secretary of State. If an annual report is not filed by the filing anniversary date, the State will list the entity as inactive. If the report has not been filed 45 days after it is due, the business will be administratively dissolved. A dissolved entity lacks standing before courts in Oregon. In most circumstances, the administrative dissolution can easily (and retroactively) be remedied by filing the annual report and paying filing and reinstatement fees. Severe consequences can result if the business is not revived by the filing deadlines, because the retroactive reinstatement does not extend any statute of limitations. For example, if your business files a suit to foreclose a lien on the last day before the statute of limitations expires but later realizes that the entity status was dissolved at the time of filing, the court may dismiss the suit because the entity did not have standing to bring the action and the entity was not reinstated after the expiration of the statute of limitations.

3. Review and Renegotiate Credit Terms.

Each year, your business should revisit existing credit agreements to determine whether you can negotiate longer payment terms, larger credit limits, and lower interest rates. Vendors are often amenable to better credit terms when you have a demonstrated history of prompt payment. Renegotiating these terms may result in significant savings on interest and finance charges.

4. Monitor Expiration Dates of Uniform Commercial Code Financing Statements.

If you have perfected a lien for a debt owed to your business by filing a financing statement with the Secretary of State, it is effective for only five years. Your business can, however, continue its perfected security interest beyond the five-year limit by filing an amendment to the financing statement. The continuation statement may be filed up to six months prior to the expiration date of the five-year period. This deadline should be marked on your calendar to ensure that the business does not jeopardize its security interest.

5. Monitor Unclaimed Checks.

If your business has written checks that are not cashed within three years, such as paychecks, expense reimbursements, and payments to vendors, the funds are presumed abandoned and must be reported as unclaimed property to the Department of State Lands ("DSL"). Businesses are obligated to report unclaimed property to DSL between October 1 and November 1 of each year. Businesses that do not comply may be subject to late-reporting interest and a civil penalty of up to $50,000.

Missing deadlines and reporting obligations can be expensive — and in some instances,fatal— to a business. An attorney who is familiar with your industry can assist you in developing a plan to identify, track, and execute compliance and reporting obligations and to monitor your business's "vital signs" in a way that minimizes risk and maximizes profitability.

Fall 2012

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